IP Management in Food Industries

Introduction

The food industry has grown to be the largest industry in the world thanks to its extensive engagement in and influence on a number of industries, including farming, agriculture, production, packaging, distribution, retail, and catering. It should come as no surprise that it has also grown to be one of the most competitive sectors, with thousands of companies striving to outwit one another to get an advantage over their competitors. To do this, food firms invest a lot of money in developing and promoting distinctive brands and are increasingly turning to intellectual property (IP) protection as a means of establishing or maintaining their leadership in the industry. IP provides a wide range of tools that can help businesses stand apart from the competitors. Scientific research and commercial studies demonstrate that package innovation directly affects consumers’ purchase decisions, with some products being bought more frequently only because of the packaging’s color, shape, or markings. In the meantime, start-ups, creative businesspeople, and chefs all around the world are increasingly combining science and modern technologies to redefine this sector. Finding a differentiator in a field that is becoming more and more competitive, where the distinctions between original ideas and copies are frequently blurred, is crucial. Intellectual property might be the solution.

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The Coca-Cola firm is the best illustration of how much intellectual property rights (IPRs) might be worth. The trademark of Coca-Cola is its most valuable asset. The value of the Coca- Cola trademark has increased from USD 68.9 billion in 2001 to USD 120 billion now. Additionally, the Coca-Cola recipe is a trade secret that is only disclosed to a small number of personnel. It has been held in a specially constructed vault at the company’s Atlanta headquarters. For more than a century, the recipe has been kept as a trade secret.

Numerous techniques are available through IP protection that give companies the chance to protect their culinary innovations. Although word marks are by far the most popular tool employed by organisations in this industry, there are numerous other unused tools that can give a competitive edge in the market.

Patents

Utility patents are one class of patents that are relevant to the food sector. You can get them for a food recipe, a food’s makeup, or cooking methods. Any novel, practical, and nonobvious process, apparatus, production, or compound is protected by a patent. While it may appear that patents are the perfect instrument to defend any creative recipe, production method, or packaging, the bar for creativity and non-obviousness is so high that patents are still comparatively underutilized in the food industry.

Trademarks

A trademark is a recognisable, non-functional indication that a company uses to set its products apart from those of its rivals. A trademark typically consists of a word (like Cheerios), a stylised word or letter (like the iconic M logo for McDonald’s), a design (like Nestlé’s birds’ nest), or a phrase (like “Life tastes better with KFC”).

Trade dress

Trade dress is a branch of trademark law that safeguards a product’s style, look, and packaging as long as they serve as a source indicator for customers. Simply defined, trade dress protects a product’s overall aesthetic, provided its owner can demonstrate that customers would immediately link it with their brand.

Design

Design rights give the possessor the right to create, sell, and use a product or a product’s parts based solely on the outer look (form, pattern, configuration, etc.).

For food, food packaging, food manufacturing processes, or other developments in the food sector, there is a wide range of potential protection. However, many of these protection measures encounter difficulties that can be particularly difficult to resolve in the food sector. The technical function exclusion, the distinctiveness criterion, and several industry-specific safety considerations are among these restrictions.

Exclusion of Technical Function: Generally speaking, any shapes, features, or characteristics that are solely utilitarian or required to achieve a technological outcome are not protected by copyright, trademark, design, or patent laws. This criterion presents a considerable issue for the food business because, more often than not, a functional outcome determines the flavour, look, colour, and/or shape of food and/or its packaging: The food must be pleasant, convenient to eat in one bite, easy to grasp with a fork, spoon, or fingers, and safe to eat; the packaging must be protective against contamination events, easy to stack or transport, or may be required by space-saving or conservation criteria.

This finding has led to the routine rejection of copyright, patent, design, and trademark protection for a range of food products by courts all around the world. In case of McDonalds and its battle to protect its trademark, McDonald’s was unsuccessful in their trademark dispute on the Big Mac in Europe. By siding with an Irish restaurant business named Supermac’s, the European Union Intellectual Property Office limited the use of McDonald’s trademark on its Big Mac burger in the EU. McDonald’s not using the trademarkin compliance with EU legislation is cited as the cause for the decision. Two years ago, Supermac’s filed a complaint with the regulatory agency, alleging “trademark intimidation” by McDonald’s. McDonald’s has previously struggled to defend their trademarks. When they are regarded to result from the nature of the goods, (ii) necessary for a technical outcome, or (iii) to provide the goods substantial value, trademarks claimed on the shape of food or food items are denied in the EU. In this case, despite being able to demonstrate that 90% of UK customers were able to link the four-fingered wafer shape with Nestlé, Nestlé lost its fight to register their well-known four-fingered wafer chocolate bar (KitKat). Specifically, the court ruled that Nestlé had not been able to demonstrate a level of acquired distinctiveness beyond mere recognition, especially because consumers could not see the shape of the product while buying it, simply its colour, which is not distinctive.

Challenge to Prove Distinctiveness

A mark or trade dress must be distinctive to qualify for trademark or trade dress protection, which means that consumers must recognise the mark or trade dress as a source identification. Uniqueness can either be innate or learned via use. Generic marks, however, can never become distinctive because doing so would deny rivals the ability to use a phrase required to identify a particular product.

Food firms frequently choose trademarks that are quite suggestive, frequently verging on descriptive, due to the intense competition in the food sector and the need for manufacturers and retailers to come up with names that are memorable enough for consumers with many options to choose from. As a result, many marks are disqualified since they are not distinctive. For the same reasons, it is still highly challenging to register colour marks since courts frequently reject the notion that a distinctive hue might serve as a source identifier. As a result, the UK Court of Appeals recently challenged Cadbury’s registration of a dark-purple colour for their chocolate packaging.

Conclusion

Even while getting IP protection in the food industry presents unique difficulties, IP is becoming increasingly important for companies wanting to gain a competitive advantage. Given the importance of social media, influencers, and marketing in influencing consumer behaviour, food companies are scrambling to stand out from the competition by implementing innovations into the design, production, flavour, and texture of their products. The winners of this race will probably be those who are able to preserve non-competitive food safety regulations and protect these advances using the appropriate intellectual property tools.

Author: Tanya Saraswat, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.

References

• Intellectual Property Law | Color Trademarks: What Protection Can They Have?, (01.09.22, 01:30PM), https://www.sbl.eu/our-news/intellectual-property-law-color-trademarks-what-protection-can-they-have/
• Mahmood Khan, Lessons From McDonald’s Global Trademark Battles, (02.09.22, 09:15PM), https://www.forbes.com/sites/mahmoodkhan1/2019/02/02/lessons-from-mcdonalds-global-trademark-battles/?sh=6ab3982a1f41.